Citation Nr: 0431240
Decision Date: 11/24/04 Archive Date: 11/29/04
DOCKET NO. 99-21 035 ) DATE
)
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On appeal from the
Department of Veterans Affairs Regional Office in Atlanta,
Georgia
THE ISSUES
1. Entitlement to service connection for hepatitis C.
2. Entitlement to service connection for cirrhosis of the
liver.
REPRESENTATION
Appellant represented by: Georgia Department of Veterans
Service
WITNESS AT HEARING ON APPEAL
Appellant
ATTORNEY FOR THE BOARD
Jeffrey J. Schueler, Counsel
INTRODUCTION
The appellant had active service from June 1973 to June 1976.
This matter comes before the Board of Veterans' Appeals
(Board) on appeal from a September 1998 rating decision of
the Department of Veterans Affairs (VA) Regional Office (RO)
in Atlanta, Georgia. In that determination, the RO denied
the appellant's claims of entitlement to service connection
for hepatitis C and for cirrhosis of the liver. The
appellant disagreed and this appeal ensued.
In his substantive appeal, the appellant had asked for a
hearing before a Veterans Law Judge. He failed to report for
a hearing scheduled in June 2003. Arguing he was unable to
report for the hearing due to illness, the appellant moved
the Board for another hearing. In June 2003, the Board
granted the appellant's motion for a new hearing date. In
July 2004, the appellant testified at a hearing before the
undersigned Veterans Law Judge designated by the Chairman of
the Board to conduct that hearing pursuant to 38 U.S.C.A.
§ 7107(c) (West 2002). A transcript of the hearing is of
record.
FINDINGS OF FACT
1. The appellant's currently demonstrated hepatitis C is
shown to be due to drug abuse.
2. The appellant's currently demonstrated cirrhosis of the
liver is shown to be due to hepatitis C, which is shown to be
due to drug abuse.
CONCLUSIONS OF LAW
1. The claim of entitlement to service connection for
hepatitis C must be denied by operation of law. 38 U.S.C.A.
§§ 1110, 5107 (West 2002); 38 C.F.R. § 3.301 (2004).
2. The claim of entitlement to service connection for
cirrhosis of the liver must be denied by operation of law.
38 U.S.C.A. §§ 1110, 5107 (West 2002); 38 C.F.R. § 3.301
(2004).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
I. Duty to Assist
The VCAA redefined VA's duty to assist and enhanced its duty
to notify a claimant as to the information and evidence
necessary to substantiate a claim. See 38 U.S.C.A. §§ 5100,
5102, 5103, 5103A, 5107, 5126 (West 2002); 38 C.F.R.
§§ 3.102, 3.156, 3.159, and 3.326 (2004) (regulations
implementing the VCAA).
The VCAA prescribed that the amendments to 38 U.S.C. § 5107
are effective retroactively to claims filed and pending
before the date of enactment. 38 U.S.C.A. § 5107 note
(Effective and Applicability Provisions) (West 2002). The
United States Court of Appeals for the Federal Circuit has
ruled that the retroactive effective date provision of the
Act applies only to the amendments to 38 U.S.C. § 5107. See
Bernklau v. Principi, 2 91 F.3d 795 (Fed. Cir. 2002); Dyment
v. Principi, 287 F.3d 1377 (Fed. Cir. 2002). The VA
regulations promulgated to implement the Act provide for the
retroactive effect of the regulations, except as specified.
See 66 Fed. Reg. 45,620 (Aug. 29, 2001).
The initial claims involved in this case were received in
June 1998, and there is no issue as to provisions of forms or
instructions for applying for the benefits. 38 U.S.C.A.
§ 5102 (West 2002); 38 C.F.R. §§ 3.150, 3.159(b)(2) (2004).
The United States Court of Appeals for Veteran Claims'
(Court's) decision in Pelegrini v. Principi (Pelegrini II),
No. 01-944, U.S. Vet. App. (June 24, 2004) (granting motion
for reconsideration of and vacating Pelegrini v. Principi
(Pelegrini I), 17 Vet. App. 412 (2004)), held, in part, that
a VCAA notice, as required by 38 U.S.C. § 5103(a), must be
provided to a claimant before the initial unfavorable agency
of original jurisdiction (AOJ) decision on a claim for
VA benefits. In this case, the initial AOJ decision was made
before November 9, 2000, the date the VCAA was enacted.
VA believes Pelegrini II is incorrect as it applies to cases
where the initial AOJ decision was made prior to the
enactment of the VCAA and is pursuing further judicial review
on this matter. However, assuming solely for the sake of
argument and without conceding the correctness of Pelegrini
II, the Board finds any defect with respect to the VCAA
notice requirement in this case to be harmless error for the
reasons specified below.
VA must provide the claimant and the claimant's
representative, if any, notice of required information and
evidence not previously provided that is necessary to
substantiate the claims. 38 U.S.C.A. § 5103(a) (West 2002);
38 C.F.R. § 3.159(b) (2004). The VCAA notice must: (1)
inform the claimant about the information and evidence not of
record that is necessary to substantiate the claim; (2)
inform the claimant about the information and evidence that
VA will seek to provide; (3) inform the claimant about the
information and evidence the claimant is expected to provide;
and (4) request or tell the claimant to provide any evidence
in the claimant' s possession that pertains to the claim,
or something to the effect that the claimant should "give us
everything you've got pertaining to your claim(s)."
Pelegrini II, No. 01-944, U.S. Vet. App., at 10; see also
Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002).
After the appellant filed his initial claim in June 1998, the
RO sent him a July 1998 letter notifying him of the
assistance VA would provide, the information and evidence
necessary to establish his claims, and how to get that
information or evidence to VA decisionmakers. By a September
1998 letter, the RO informed the appellant of the rating
action denying service connection for the claimed
disabilities. Upon the appellant's disagreement, the RO sent
him an October 1998 statement of the case, and after receipt
of additional evidence a December 2002 supplemental statement
of the case, each of which listed the evidence considered,
the applicable law and rating criteria, and the reasons for
the decision. The appellant perfected the appeal and asked
for a hearing before a Veterans Law Judge. He failed to
report to a hearing scheduled in June 2003 (of which he had
notice via an April 2003 letter from the RO), though the
Board granted his motion for a new hearing after he indicated
he had been too sick to travel to the scheduled hearing. To
accommodate the hearing, the Board remanded the claim in June
2003. The RO told the appellant of the re-scheduled hearing
by letter in May 2004, and the appellant testified at a
hearing before the undersigned in July 2004.
VA has informed the appellant of the information and evidence
necessary to substantiate the claim. The RO notified him of
the need for information or evidence concerning the claim.
In response, he identified the sources of his treatment for a
seizure disorder and records from these sources are
associated with the claims file. The appellant has been
informed of the information and evidence not of record that
is necessary to substantiate the claim, of the information
and evidence he was expected to provide, of the information
and evidence that VA would seek to obtain, and of the need to
provide any information and evidence in his possession
pertinent to the claim. See Pelegrini II, No. 01-944, U.S.
Vet. App., at 10. There is no indication that additional
notification of the types of evidence needed to substantiate
the claim, or of VA' s or the appellant's responsibilities
with respect to the evidence, is required. See Quartuccio v.
Principi, 16 Vet. App. 183 (2002).
Even if the initial notice in this case did not comply with
Pelegrini II, any notice defect in this case was harmless
error. The content of the aggregated notices, including the
notice letters subsequently issued, fully complied with the
requirements of 38 U.S.C.A. § 5103(a) (West 2002) and
38 C.F.R. § 3.159(b) (2004). After VA provided this notice,
the appellant communicated on multiple occasions with VA,
without informing it of pertinent evidence. He has been
provided with every opportunity to submit evidence and
argument in support of his claim, and to respond to VA
notices. Therefore, not withstanding Pelegrini II, to decide
the appeal would not be prejudicial error to the appellant.
VA must also make reasonable efforts to assist the claimant
in obtaining evidence necessary to substantiate the claims
for the benefits sought, unless no reasonable possibility
exists that such assistance would aid in substantiating the
claims. 38 U.S.C.A. § 5103A(a) (West 2002); 38 C.F.R.
§ 3.159(c), (d) (2004). Such assistance includes making
every reasonable effort to obtain relevant records (including
private and service medical records and those possessed by VA
and other Federal agencies) that the claimant adequately
identifies to the Secretary and authorizes the Secretary to
obtain. 38 U.S.C.A. § 5103A(b) and (c) (West 2002);
38 C.F.R. § 3.159(c)(1-3) (2004). The evidence of record
includes the service medical records, VA and private
treatment records, and documents received on multiple
occasions from the appellant, his representative, and a
friend. The evidence also includes the transcript of the
appellant's testimony at the July 2004 hearing. The RO made
reasonable efforts to obtain relevant records adequately
identified by the appellant; in fact, it appears that all
evidence identified by the appellant relative to this claim
has been obtained and associated with the claims folder.
Assistance shall also include providing a medical examination
or obtaining a medical opinion when such an examination or
opinion is necessary to make a decision on the claim.
38 U.S.C.A. § 5103A(d) (West 2002); 38 C.F.R. § 3.159(c)(4)
(2004). As this claim involves questions that are ultimately
resolved by operation of law, a medical examination or
opinion is not necessary to substantiate the claims.
There is no reasonable possibility further assistance might
substantiate the claims. See 38 U.S.C.A. § 5103A(2) (West
2002); 38 C.F.R. § 3.159(d) (2004). On appellate review,
there are no areas in which further development is needed.
II. Analysis
Service connection is granted for a disability resulting from
an injury suffered or disease contracted while on active duty
or for aggravation of a preexisting injury suffered or
disease contracted in the line of duty. 38 U.S.C.A. § 1110
(West 2002); 38 C.F.R. § 3.303 (2004). Regulations also
provide that service connection may be granted for any
disease diagnosed after discharge, when all the evidence,
including that pertinent to service, establishes that the
disease was incurred in service. 38 C.F.R. § 3.303(d)
(2004). Certain disease, including cirrhosis of the liver,
may be presumed to have been incurred in service when
manifest to a compensable degree within one year of discharge
from active duty. 38 U.S.C.A. § 1112 (West 2002); 38 C.F.R.
§§ 3.307, 3.309 (2004).
A determination of service connection requires a finding of
the existence of a current disability and an etiologic
relationship between that disability and an injury or disease
incurred in service. Edenfield v. Brown, 8 Vet. App. 384,
388 (1995); Caluza v. Brown, 7 Vet. App. 498, 506 (1995).
Absent any independent supporting clinical evidence from a
physician or other medical professional, "[t]he veteran's
own statements expressing his belief that his disabilities
are service connected . . . are not probative." Espiritu v.
Derwinski, 2 Vet. App. 492, 495 (1992).
The determination of the merits of the claim must be made as
to whether the evidence supports the claim or is in relative
equipoise, with the appellant prevailing in either event, or
whether a preponderance of the evidence is against the claim,
in which case the claim is denied. Gilbert v. Derwinski,
1 Vet. App. 49, 55 (1990). The Board notes that evidence
supporting a claim or being in relative equipoise is more
than evidence that merely suggests a possible outcome.
Instead, there must be at least an approximate balance of
positive and negative evidence for the appellant to prevail.
Id. at 56.
The appellant claims he contracted hepatitis C, and from that
cirrhosis of the liver, as a result of activities during his
period of active service. He asserts treatment for hepatitis
C in service and claims he is now terminally ill with
cirrhosis of the liver. He maintains he could have developed
hepatitis through various activities, including sexual
contact, tattoos, sharing razors with other soldiers,
immunizations prior to heading overseas, or drug use. He
reported also he was exposed to hepatitis in 1973 or 1974
while stationed in Germany from a jaundiced soldier and that
he received treatment for "liver virus" (which he maintains
was the name attached to hepatitis C at the time) while at
Fort Campbell, Kentucky. In a letter to his congressman in
January 1999, the appellant recounted the RO's denial of
benefits on the basis of misconduct, and argued this amounted
to an improper moral judgment of veterans who served during a
period of common drug and alcohol use (i.e., approximately
his period of service from 1973 to 1976).
At his hearing in July 2004, the appellant testified he had
his first symptoms of hepatitis in 1989, though he also
reported a diagnosis of hepatitis in 1974 at Fort Campbell,
Kentucky, after returning from Germany, with many unspecified
tests since 1974 showing continued hepatitis. He claimed no
treatment by VA for hepatitis, though he also reported
involvement in a VA treatment study of an unspecified nature.
He reported that after separating from service he abused
drugs.
A friend of the appellant wrote in a June 2004 letter that he
knew the appellant shared a room with others where he shared
shaving materials. He also noted the appellant's roommates
engaged in sexually promiscuous behavior, and alluded to the
appellant's possible involvement in such behavior. He
reported that one of the roommates was jaundiced. He noted
that he knew the appellant had "smoked Hash" during their
time in Germany.
The service medical records include a May 1973 enlistment
examination that was essentially normal and that noted the
presence of two tattoos, one on each arm. In March 1976, the
appellant entered a service-based resident drug
rehabilitation program with a diagnosis of improper heroin
use. It was noted that the appellant had used opiates by
needles two to six times per week before and during service
and had used barbiturates daily at some time during service.
Examinations in July and September 1976 showed essentially
normal results, with the tattoos record on the enlistment
examination again noted. The Report of Medical History in
September 1976 recorded a history of viral hepatitis in
December 1974 at Fort Campbell, Kentucky, with no sequalae
that was due to his history of drug use.
Private laboratory results in February 1998 revealed positive
results for antibodies for hepatitis B and hepatitis C, which
indicated either previous viral exposure with subsequent
development of immunity, active immunization with adequate
immune response, or passive immunization. A liver biopsy
from March 1998 showed active chronic hepatitis with
cirrhosis. In a June 1998 statement, a private physician
stated the appellant had liver disease caused by hepatitis C
and noted the results of the liver biopsy. He concluded:
"Untreated, his condition is terminal."
In a June 1999 statement, the same physician indicated he had
been treating the appellant since January 1998 and from the
appellant learned he was first told of liver problems in
1974. The physician noted the appellant had been treated
after the liver biopsy and the literature showed in at least
40 percent of cases no etiology could be documented.
The record includes a copy of an Information Bulletin from
the Georgia Department of Veterans Affairs dated in March
1999 regarding VA initiatives to prevent and treat hepatitis
C, defined as a blood borne infection that increased a
patient's risk for chronic liver disease during the first two
decades following initial infection. The Bulletin reported
that hepatitis C is of particular concern to VA due to the
greater prevalence of the disease in VA's population,
especially those receiving inpatient medical care.
Also of record is an April 1998 letter from Dr. C. Everett
Koop (former Surgeon General of the United States) to the
Veterans of Foreign Wars of the United States regarding
hepatitis C as a "threat to the public health", especially
veterans. Dr. Koop reported that veterans had one of the
highest infection rates because of the unique activities of
military service, which included transfusions, blood contact,
needle-sticks, and tattoos. He indicated that veterans who
contracted hepatitis C infection
decades ago would only now be exhibiting signs of
chronic hepatitis C and liver disease. Typically,
people with [hepatitis C] infection suffer a brief
acute attack, or no acute episode, and then exhibit
no signs of the virus for 10 to 20 years. At the
end of a decade or two of infection they may
develop serious liver disease leading to cirrhosis,
liver dysfunction, liver cancer, liver transplant
and death.
Dr. Koop also noted that
The irony about hepatitis C is that veterans who
contracted this disease during their military
service would have no way of proving a service
connection today. Twenty years ago, hepatitis C
was not distinguished from other forms of hepatitis
and was not diagnosed. Military personnel who
contracted this disease during their service would
have been discharged with no visible signs of the
disease.
In evaluating this claim, the Board is bound by statutory and
regulatory mandates precluding compensation for diseases or
injuries the result of willful misconduct. Section 8052 of
the Omnibus Budget Reconciliation Act of 1990 (OBRA 1990),
Pub. L. No. 101-508, § 8052, 104 Stat. 1388, 1388-351,
amended former 38 U.S.C.A. §§ 310 and 331 (now redesignated
as §§ 1110 and 1131) to prohibit, effective for claims filed
after October 31, 1990, payment of compensation for any
disability that is a result of the appellant's own willful
misconduct or abuse of alcohol or drugs. Also amended was
38 U.S.C.A. § 105(a) to provide that, effective for claims
filed after October 31, 1990, an injury or disease incurred
during active service will not be deemed to have been
incurred in line of duty if the injury or disease was a
result of the person's own abuse of alcohol or drugs.
VA adopted regulations consistent with the statutory mandate
precluding payment of compensation benefits for disability
resulting from abuse of alcohol or drugs. Direct service
connection may be granted only when a disability was incurred
or aggravated in line of duty, and not, for claims filed
after October 31, 1990, the result of abuse of alcohol or
drugs. 38 C.F.R. § 3.301(a) (2004). An injury or disease
incurred during active military, naval, or air service shall
not be deemed to have been incurred in line of duty if such
injury or disease was a result of the abuse of alcohol or
drugs by the veteran. 38 C.F.R. § 3.301(d) (2004).
Drug usage is defined as "the use of illegal drugs
(including prescription drugs that are illegally or illicitly
obtained), the intentional use of prescription or non-
prescription drugs for a purpose other than the medically
intended use, or the use of substances other than alcohol to
enjoy their intoxicating effects." 38 C.F.R. § 3.301(d)
(2004). The term "in the line of duty" excludes any injury
or disease that was the result of the appellant's own willful
misconduct or, for claims filed after October 31, 1990, that
was a result of his or her abuse of alcohol or drugs.
38 C.F.R. § 3.1(m) (2004).
In this case, the appellant would have VA ignore these
provisions regarding willful misconduct. He maintains his
hepatitis, and derivatively his cirrhosis, was a direct
result of his military service. The appellant is not
qualified to render opinions as to medical diagnoses,
etiology, or causation, and his opinion is not competent in
this matter. Espiritu v. Derwinski, 2 Vet. App. 492, 494-95
(1992); see also Bostain v. West, 11 Vet. App. 124, 127
(1998). The service medical records show a history of
hepatitis infection in December 1974 without sequalae. He
later developed documented symptoms of hepatitis in 1998,
about 22 years later. The appellant's private physician did
not opine as to a specific etiology for the diagnosis of
hepatitis, though he did indicate that in many cases an
etiology was unknowable. Dr. Koop's letter, while not
specific to this case, described the general course of
hepatitis C infection, which roughly corresponded to the
appellant's history - initial in-service infection without
residuals followed by a latent period and symptoms arising
about two decades after initial infection. While the
appellant acknowledged his previous history of drug use, he
also reported other activities during service - including
sexual contact, tattoos, sharing of razors, and close
proximity to a jaundiced soldier - that might lead to
infection.
What this narrative excludes is the speculative nature of the
appellant's personal sexual and hygiene activity, the
evidence that he did not add or remove tattoos during
service, and the documentation of his drug abuse prior to and
during service, including the in-service administration of
these drugs through the use of needles. There is simply no
evidence one way or the other regarding his sexual and
hygiene activities, making those activities highly suspect as
a predicate for hepatitis infection. As for the tattoos, the
enlistment and separation examinations showed two tattoos,
one on each arm. Because he departed service with the same
tattoos he entered with, and no more or less, he cannot claim
he contracted hepatitis through the use of needles for the
creation or destruction of these tattoos. Significantly, the
service medical records concerning his entry into a service-
based resident drug rehabilitation program reported the
appellant had used opiates by needles two to six times per
week before and during service. Moreover, an examiner noted
on the Report of Medical History in September 1976 that the
history of viral hepatitis in December 1974 without sequalae
was due to his history of drug use. This document is of
prime concern, for it shows that contemporaneous with service
medical professionals linked his hepatitis infection to his
drug abuse. Therefore, even if the appellant's history
corresponds roughly with the pattern noted by Dr. Koop's
letter, and even if the service medical records included
detailed documentation of the resident rehabilitation
treatment, that pattern is still the result of the
appellant's willful misconduct in abusing drugs.
In short, the evidence attributes the appellant's hepatitis
to drug abuse in service that is by definition a result of
willful misconduct. Service connection cannot be granted for
a disease or injury arising from substance abuse pursuant to
the provisions that prohibit service connection for willful
misconduct, which includes the abuse of drugs. 38 C.F.R.
§ 3.301(b)(c) (2004). As such, the assertion that the
appellant has hepatitis C due to service lacks legal merit.
The appellant claims service connection for cirrhosis of the
liver as secondary to hepatitis infection. As the hepatitis
infection is due to willful misconduct, it cannot serve as a
platform on which to base a determination of service
connection for cirrhosis of the liver, and that claim lacks
legal merit. Where a claim is for a benefit not provided by
law, it is properly denied. See Sabonis v. Brown, 6 Vet.
App. at 426, 430.
ORDER
Service connection for hepatitis C is denied.
Service connection for cirrhosis of the liver is denied.
____________________________________________
C. P. RUSSELL
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs
YOUR RIGHTS TO APPEAL OUR DECISION
The attached decision by the Board of Veterans' Appeals (BVA or Board) is
the final decision for all issues addressed in the "Order" section of the
decision. The Board may also choose to remand an issue or issues to the
local VA office for additional development. If the Board did this in your
case, then a "Remand" section follows the "Order." However, you cannot
appeal an issue remanded to the local VA office because a remand is not a
final decision. The advice below on how to appeal a claim applies only to
issues that were allowed, denied, or dismissed in the "Order."
If you are satisfied with the outcome of your appeal, you do not need to do
anything. We will return your file to your local VA office to implement
the BVA's decision. However, if you are not satisfied with the Board's
decision on any or all of the issues allowed, denied, or dismissed, you
have the following options, which are listed in no particular order of
importance:
? Appeal to the United States Court of Appeals for Veterans Claims
(Court)
? File with the Board a motion for reconsideration of this decision
? File with the Board a motion to vacate this decision
? File with the Board a motion for revision of this decision based on
clear and unmistakable error.
Although it would not affect this BVA decision, you may choose to also:
? Reopen your claim at the local VA office by submitting new and
material evidence.
There is no time limit for filing a motion for reconsideration, a motion to
vacate, or a motion for revision based on clear and unmistakable error with
the Board, or a claim to reopen at the local VA office. None of these
things is mutually exclusive - you can do all five things at the same time
if you wish. However, if you file a Notice of Appeal with the Court and a
motion with the Board at the same time, this may delay your case because of
jurisdictional conflicts. If you file a Notice of Appeal with the Court
before you file a motion with the BVA, the BVA will not be able to consider
your motion without the Court's permission.
How long do I have to start my appeal to the Court? You have 120 days from
the date this decision was mailed to you (as shown on the first page of
this decision) to file a Notice of Appeal with the United States Court of
Appeals for Veterans Claims. If you also want to file a motion for
reconsideration or a motion to vacate, you will still have time to appeal
to the Court. As long as you file your motion(s) with the Board within 120
days of the date this decision was mailed to you, you will then have
another 120 days from the date the BVA decides the motion for
reconsideration or the motion to vacate to appeal to the Court. You should
know that even if you have a representative, as discussed below, it is your
responsibility to make sure that your appeal to Court is filed on time.
How do I appeal to the United States Court of Appeals for Veterans Claims?
Send your Notice of Appeal to the Court at:
Clerk, U.S. Court of Appeals for Veterans Claims
625 Indiana Avenue, NW, Suite 900
Washington, DC 20004-2950
You can get information about the Notice of Appeal, the procedure for
filing a Notice of Appeal, the filing fee (or a motion to waive the filing
fee if payment would cause financial hardship), and other matters covered
by the Court's rules directly from the Court. You can also get this
information from the Court's web site on the Internet at
www.vetapp.uscourts.gov, and you can download forms directly from that
website. The Court's facsimile number is (202) 501-5848.
To ensure full protection of your right of appeal to the Court, you must
file your Notice of Appeal with the Court, not with the Board, or any other
VA office.
How do I file a motion for reconsideration? You can file a motion asking
the BVA to reconsider any part of this decision by writing a letter to the
BVA stating why you believe that the BVA committed an obvious error of fact
or law in this decision, or stating that new and material military service
records have been discovered that apply to your appeal. If the BVA has
decided more than one issue, be sure to tell us which issue(s) you want
reconsidered. Send your letter to:
Director, Management and Administration (014)
Board of Veterans' Appeals
810 Vermont Avenue, NW
Washington, DC 20420
VA
FORM
JUN
2003
(RS)
4597
Page
1
CONTINUED
Remember, the Board places no time limit on filing a motion for
reconsideration, and you can do this at any time. However, if you also plan
to appeal this decision to the Court, you must file your motion within 120
days from the date of this decision.
How do I file a motion to vacate? You can file a motion asking the BVA to
vacate any part of this decision by writing a letter to the BVA stating why
you believe you were denied due process of law during your appeal. For
example, you were denied your right to representation through action or
inaction by VA personnel, you were not provided a Statement of the Case or
Supplemental Statement of the Case, or you did not get a personal hearing
that you requested. You can also file a motion to vacate any part of this
decision on the basis that the Board allowed benefits based on false or
fraudulent evidence. Send this motion to the address above for the
Director, Management and Administration, at the Board. Remember, the Board
places no time limit on filing a motion to vacate, and you can do this at
any time. However, if you also plan to appeal this decision to the Court,
you must file your motion within 120 days from the date of this decision.
How do I file a motion to revise the Board's decision on the basis of clear
and unmistakable error? You can file a motion asking that the Board revise
this decision if you believe that the decision is based on "clear and
unmistakable error" (CUE). Send this motion to the address above for the
Director, Management and Administration, at the Board. You should be
careful when preparing such a motion because it must meet specific
requirements, and the Board will not review a final decision on this basis
more than once. You should carefully review the Board's Rules of Practice
on CUE, 38 C.F.R. 20.1400 -- 20.1411, and seek help from a qualified
representative before filing such a motion. See discussion on
representation below. Remember, the Board places no time limit on filing a
CUE review motion, and you can do this at any time.
How do I reopen my claim? You can ask your local VA office to reopen your
claim by simply sending them a statement indicating that you want to reopen
your claim. However, to be successful in reopening your claim, you must
submit new and material evidence to that office. See 38 C.F.R. 3.156(a).
Can someone represent me in my appeal? Yes. You can always represent
yourself in any claim before VA, including the BVA, but you can also
appoint someone to represent you. An accredited representative of a
recognized service organization may represent you free of charge. VA
approves these organizations to help veterans, service members, and
dependents prepare their claims and present them to VA. An accredited
representative works for the service organization and knows how to prepare
and present claims. You can find a listing of these organizations on the
Internet at: www.va.gov/vso. You can also choose to be represented by a
private attorney or by an "agent." (An agent is a person who is not a
lawyer, but is specially accredited by VA.)
If you want someone to represent you before the Court, rather than before
VA, then you can get information on how to do so by writing directly to the
Court. Upon request, the Court will provide you with a state-by-state
listing of persons admitted to practice before the Court who have indicated
their availability to represent appellants. This information is also
provided on the Court's website at www.vetapp.uscourts.gov.
Do I have to pay an attorney or agent to represent me? Except for a claim
involving a home or small business VA loan under Chapter 37 of title 38,
United States Code, attorneys or agents cannot charge you a fee or accept
payment for services they provide before the date BVA makes a final
decision on your appeal. If you hire an attorney or accredited agent within
1 year of a final BVA decision, then the attorney or agent is allowed to
charge you a fee for representing you before VA in most situations. An
attorney can also charge you for representing you before the Court. VA
cannot pay fees of attorneys or agents.
Fee for VA home and small business loan cases: An attorney or agent may
charge you a reasonable fee for services involving a VA home loan or small
business loan. For more information, read section 5904, title 38, United
States Code.
In all cases, a copy of any fee agreement between you and an attorney or
accredited agent must be sent to:
Office of the Senior Deputy Vice Chairman (012)
Board of Veterans' Appeals
810 Vermont Avenue, NW
Washington, DC 20420
The Board may decide, on its own, to review a fee agreement for
reasonableness, or you or your attorney or agent can file a motion asking
the Board to do so. Send such a motion to the address above for the Office
of the Senior Deputy Vice Chairman at the Board.
VA
FORM
JUN
2003
(RS)
4597
Page
2